4.5

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Evidence
Hearsay
1/28/20
Background
Hearsay is a ground on which evidence that is otherwise relevant can be excluded
• If objection is raised on hearsay grounds, it is not a response to say “but your honor, the
evidence is relevant”
Hearsay rules largely exist because we have juries — theory of the jury is that the jury is like a
lie detector
• Live witnesses so that the jury can look at the witness and determine truthtellers from
liars
o Jury tests witnesses narrative/testimonial capacities
1) Perception – did the witness see what they say they saw
2) Memory – does the witness correctly remember what they say they saw
3) Narration – is the witness correctly narrating what they saw
4) Sincerity – is the witness being sincere
If a witness is repeating what another person (Ophelia) said, then the lie detector function doesn’t
work w/ respect to the content of what Ophelia said
&agrave; Hearsay rules serve to tell us when a person in court can tell us about a statement made by a
person out of court
Structure of Hearsay
Hearsay requires:
1) A statement;
• The out of court thing that we are testing
• An assertion that something is true
i. E.g., it was raining that day.
2) A declarant;
• The person who is out of court and made the statement
3) A witness.
• The person who in court testifies to the declarant’s statement
E.g., “Ophelia told me she saw Carter with a gun.”
Brief Note on Exceptions
Most of the FRE regarding hearsay are about the exceptions
• Note: courts use exceptions to hearsay and “is not hearsay” interchangeably, but the latter
is technically correct
Exceptions have “strong indicia of reliability”
Evidence
Hearsay
1/28/20
What is hearsay?
The statements that matter for hearsay are only the statements introduced to prove the truth of
what they assert
• Think about the James case
o What made all of those out of court statements admissible is that they were
introduced to establish James’ sense of fear — they were not offered to prove that
Ogden killed a man
&sect; Their truth does not matter (i.e., whether Ogden really did all those things
or not)
o Sufficient to have James present for the jury to assess her testimonial capacities
(was she really scared?)
If the out of court statement is offered for the truth of what it asserts &agrave; hearsay
• Question becomes whether it falls within an exception
Rule 801 (a) – (c) — Definitions of hearsay
Problem 7.1 – affidavit is hearsay
• Out of court statement offered for the truth of what the declarant is testifying to
• The fact that it is an affidavit under penalty of perjury is irrelevant to the hearsay
determination
Problem 7.2 – yes, $ gesture is hearsay
• Something being gesture does not mean it cannot be an assertion
• Depending on Jeffrey’s role in this there might be ways to get this in via exception
Class Hypo – Carter takes stand in own-defense in murder trial: “Night of crime, rich uncle
asked me to come meet me in his study, suddenly pulled handgun from his desk yelled ‘I am sick
of tired of you and I am going to kill you’.” Carter testifies that he feared for his life and acted in
self-defense. DA objects to testimony as to what uncle said.
• Not hearsay. Rich uncle’s statement is offered as proof of Carter’s fear for his life, truth
of rich uncle’s statement does not matter.
o He could fear for his life even if rich uncle did not mean what he said.
o Carter could be lying about what rich uncle said, but because Carter is in court
room, jury can make that determination.
Nonhearsay Uses of Out-of-Court Statements (p. 380-81)
•
Legally operative words (verbal acts)
o “I do,” “I accept” etc.
Carter: Fisher also mentions threats, but not sure that he is correct about that. Courts do not treat
threats as a “threat exception” but rather admit because it is being offered for the effect had on
the testifying party.
Evidence
•
Hearsay
1/28/20
Inconsistent statements offered to impeach
o Offered to show that someone’s story has changed
o Impeachment statements are tricky because jury has to be instructed that although
it is hearing this statement it cannot consider it substantively, can only consider it
on the issue of whether the witness is changing the story
Burdens
When a hearsay objection is raised, the burden of showing hearsay is on the objecting party
• If in equipoise &agrave; judge should keep it in
o See: Advisory committee note
Problem 7.3 – hearsay
• If witness on witness stand quotes their own, out-of-court testimony the court is supposed
to treat in-court witness and out-of-court witness as two different people
• Assertion is that the robber is #3
• Note: this probably could come in under exception
Problem 7.6 – not hearsay
• Offered for impact on Getz
• Effect on Getz only matters if the crime of selling stolen property is a crime of state of
mind
Not responsible for 7.4 or 7.7
Problem 7.8 – (1) gov’ts statement: not hearsay for two reasons:
• Legally operative verbal act
• Statement is not being offered for the government for its truth, it is being offered for its
falsity
• An out of court statement being offered for its falsity is NOT hearsay
•
(2) Defendant’s statement
Probably would come in under operative verbal act or under 807 (don’t worry about 807
yet)
Class hypo – In a widget sale, plaintiff (buyer) said “I would never accept that offer, make me a
better one,” wants to introduce, defendant (seller) objects. Not hearsay.
• Verbal act
• Rejection
Defamation
Tricky because defamatory statements are assertions but not hearsay because:
• It is being introduced for its falsity;
• BUT the defamatory statement has to be proved to win a defamation case so its truth does
matter
Evidence
Hearsay
1/28/20
Faulknor Article – Is an act hearsay? (p. 388)
Read it. Although it’s old, it was quite influential because it persuaded the drafters of the rule
that assertions not made verbally or in writing have to be intended as assertions to be considered
assertions (i.e., hearsay).
• E.g., Raising umbrella does communicate it was raining but was not intended to
communicate it was raining so is not an assertion
• E.g., Truck at traffic light starts rolling on red light and you follow. When you testify “I
thought the light was green because the truck started moving,” the truck moving
communicated that the light had changed but the truck is not moving to communicate the
fact that it was moving.
o VERY IMPORTANT to understand because there are a lot of cases where there is
a question as to whether an act is an assertion or not.
Problem 7.9 – not hearsay
• Captain did not intend to communicate that the ship was seaworthy by his inspection
• Footnote from Carter: claim that the captain did communicate seaworthy irrespective of
intention relies on cultural understandings of what it means to put your family on a ship.
Nonetheless, this possibility (that he knowingly put the family on an unsafe boat) would
most likely not bar the evidence from coming in.
• This hypothetical was offered in the Wright v. Tatham case
o Correspondence was admitted to prove the mental competence of receiver (i.e.,
people thought he was mentally competent otherwise wouldn’t write him letters)
Problem 7.10 – hearsay
• Act of taking family to nuclear site was intended to communicate — he had
communicative intent — that it was safe
o Distinguishes this instance from 7.9 (sea captain)
Assertions
Fisher’s assertions:
1) Express or direct assertions (most assertions)
o E.g., Carter was holding the gun; it was raining
2) Implied assertions
o When the speaker clearly intends to communicate a particular message even
though the words, taken literally, mean something else
&sect; E.g., Laura ought to give that dog a bath
- Literally, it is a statement about Laura but what the speaker
actually intends to communicate is that the dog is dirty
a. If offered to prove the dog was dirty &agrave; hearsay, per Fisher.
Many courts would agree but not all courts would agree.
Evidence
Hearsay
1/28/20
3) Indirect assertions
o One link in the chain of inferences leading to the ultimate fact to be proved
&sect; E.g., Angela and the architect on p. 397
- Hearsay if offered to prove that Angela was with the architect
- Also hearsay if offered as evidence that Angela was not planning
to commit suicide because it is necessary link in chain of inference
from planning in long term to not being suicidal
a. Not all courts agree on this.
Note: no two scholars understand these terms the same, so this is not the law, just what Fisher
means.
Lots of courts will draw a line between the direct assertion and “something” else
• The “something” else is sometimes called an implied assertion by some courts, indirect
assertions by others, and not assertions at all by yet others.
Carter: Important to know that a declarant’s statement about a declarant’s intention (e.g., I am
leaving for work now) is an assertion
Assertions Offered as Circumstantial Proof of Knowledge – Bridges v. State (p. 399)
Evidence of little girl’s description was admissible to show that she had been in the room
• Fisher explains: when offered for this reason, her testimonial capacities don’t matter
• Carter: this doesn’t hold together under Fisher’s typology of indirect assertions because
she is asserting indirectly that she has been in the room
o No one would let in hearsay from a witness who couldn’t make it to court just
because they had such good detail of the room where a murder happened, for
example
o Carter thinks this is a discount because of the nature of the crime
Assertion Problems (p. 400)
2. No assertion by lack of comment re: husband’s purchase of boat
o No categorical rule – there is NOT a rule saying silence = lack of assertion
Class hypo – accident in which it matters if car’s headlights were on, Carter seeks to introduce
car’s manual, which shows that the car has a feature meaning car’s headlights automatically go
on at nightfall and that that is the default. Carter says he never changed the default. Opposing
party objects to manual claiming it is hearsay. Does the manual make an assertion?
• Yes.
o Some who say that owner’s manual looks to assert something about the car, others
who say that it is a tool not meant to assert.
• Indirect assertion: From manual to headlights being on by default, from Carter not
changing default to headlights being on.
Evidence
Hearsay
1/28/20
Class hypo – three astronauts go into space and upon return try to contact mission control,
mission control answerer is female. Odd because all mission control people are male, to their
knowledge. At a later proceeding, it becomes relevant that there had been a significant change in
their absence. One of the astronauts looks to testify that he first became aware of this change
when he heard the female voice answer mission control. Is that an assertion?
• Not an assertion.
o The woman who answered mission control did not intend to communicate
anything in answering the phone.
Class hypo – question as to whether a particular marine who is dead was expecting to be
transferred home in the morning. As evidence that he did not expect to be transferred, the
defense attorney introduces evidence that he had not called anyone that he was coming home,
that he had no packed, and had not told his friends at the base. Objection on hearsay grounds,
how do you rule? Is there an assertion?
• No assertion.
o Silence is not meant as an assertion, failure to pack does not seem intended to
communicate anything.
o Does communicate but is not intended to do so, hence not an assertion.
Assertion Problems (cont’d)
3. Do meth-recipe and crack-recipe papers make an assertion?
o Found on their own, they are an assertion regarding how to make meth and crack.
o They do not make the assertion that the prosecutor is looking to make, hence not
hearsay as the prosecutor is looking to use them.
o Counterargument: the documents along with expert testimony do assert how to
make meth and crack and are related to what prosecutor looks to prove.
5. Assumption by many people that the location was a gambling ring, court admitted.
o Not an assertion, did not intend to communicate that it was a gambling ring.
Class hypo – Defendant on trial for shop lifting, under state law, punishment is greater if value of
stolen items &gt;$500. The arresting officer testifies that when taken into custody, the defendant
was wearing a coat with a price-tag on it. The prosecutor asks the officer what the price on the
tag was. Defense objects it is hearsay because it makes an assertion. How do you rule?
• Courts have gone different ways on this. No question that the price tag makes an
assertion, question is whether it is the kind of assertion the rules are concerned about.
o Exceptions to various parts of evidence rules for things that are small, short, easy
to remember. (To be addressed later in semester.)
Assertion problems (cont’d)
7. Could go either way.
8. Not responsible for it, but know that most courts, most of the times say that a
communication with yourself is not hearsay.
Evidence
Hearsay
1/28/20
o Diary is not hearsay and is admissible, unless you wrote it expecting someone else
to read it.